Foley Hoag LLP

SUMMARY

We know that the recent financial crisis and related economic downturn unfortunately are causing many employers to consider ways to reduce operational expenses, including through workforce restructuring and layoffs. We offer a few preliminary considerations: any such reduction-in-force (RIF) must be carefully planned and executed both to minimize exposure to liability under various employment laws and to mitigate negative effects on employee morale and operations. The following are some issues for employers to consider as they grapple with whether and how to implement a layoff.

Questions Include:

• Is a Layoff Necessary?
• Voluntary or Involuntary Program?
• Develop Uniform Selection Criteria
• Conduct a Layoff Analysis
• Is Advance Notice Required
• Severance and ERISA
• Asking for a Release
• Don't Forget Immigration Implications
• Don't Lose Sight of Termination Basics

SUMMARY

In light of the turmoil currently affecting the world securities markets, on Thursday, October 16, 2008, NASDAQ announced that it has temporarily suspended enforcement of its rules requiring listed companies to maintain a minimum bid price of $1.00 and a specified minimum market value of publicly held shares. The suspension applies to shares of common stock, as well as other securities, including preferred stock, American Depository Receipts and limited partnership interests... (continues)

SUMMARY

On August 7, 2008, Massachusetts Governor Deval Patrick signed the "Global Warming Solutions Act," which will impose the most stringent greenhouse gas (GHG) reduction requirements in the nation. The Act creates Chapter 21N, which mandates a reduction of GHG emissions of 10% to 25% below 1990 levels by 2020 and 80% below 1990 levels by 2050, with intermediate caps for 2030 and 2040. Although the details for implementing these caps will not be known until regulations are promulgated, the emission reductions required to meet these caps must be measurable and enforceable.

Whereas most existing GHG reduction programs in the United States focus on the electric generating sector, this Act empowers the Executive Office of Energy and Environmental Affairs (EEA) to regulate a wide variety of sources across the commonwealth, and sets in motion the regulatory process to enforce an economy-wide cap on GHGs. Failure to meet the required reductions can result in administrative civil penalties for violators as high as $25,000 per day.

SUMMARY

In a notice published in the August 1, 2008 Federal Register, the United States Environmental Protection Agency (“EPA”) announced that it will begin following a new approach to applying its policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (65 Fed. Reg. 19618) (“Audit Policy”) to new owners that wish to make a “clean start” at newly acquired facilities. EPA will begin applying the Interim Approach to Applying the Audit Policy to New Owners (the “Interim Approach”) in order to encourage new owners to audit newly acquired facilities and to disclose, correct and prevent to recurrence of instances of environmental noncompliance.

SUMMARY

The Securities and Exchange Commission (“SEC”), Financial Industry Regulatory Authority (“FINRA”) and New York Stock Exchange Regulation, Inc. (“NYSE Regulation”) have taken unprecedented steps in response to the concern that the stock collapse of Bear Stearns and Lehman Brothers resulted from the spread of false and misleading rumors, and that the rumors may have been linked to “naked” short selling.  

SUMMARY

On June 16, 2008, the SJC issued its much-anticipated decision in Michael D. Bank et al v. Thermo Elemental, Inc. et al., clarifying that line-by-line compliance with “every detail” of the Massachusetts Contingency Plan (MCP) is not a prerequisite to recovery of any of the response costs incurred by a property owner via the cost-recovery provisions of the MCP in MGL Chapter 21E.  The SJC also confirmed that attorneys fees incurred in implementing a site cleanup – as opposed to litigation-related attorneys’ fees – are recoverable as response costs under Chapter 21E.

SUMMARY

While the debate over federal climate change regulation continues, several US states and regions have enacted their own programs. One of the first to act was Massachusetts, which in 2001 promulgated carbon limitations applicable to six existing power plants. Those regulations established an emission limit of 1,800 pounds of carbon per MWh and sharply limited the use of many types of carbon credits to meet the specified carbon targets. The regulations also allowed Massachusetts Department of Environmental Protection (“DEP”) to invoke a “safety value” if DEP determined that the Massachusetts requirements could not otherwise be achieved. Earlier this month, DEP determined just that and opened up its carbon markets. Although this individual action affects only a few sources and only for emissions generated in 2008, it is indicative of some of the regulatory flexibility that will be needed as regulators and regulated sources begin to grapple with the practicalities of climate change regulation. Most interested observers believe that climate change regulation will only continue to increase, but precisely how that process will unfold remains to be seen.

SUMMARY

Established in December 1980 by the partners of law firm Foley Hoag, The Foley Hoag Foundation is a private foundation that seeks to combat racism, especially among youth, in the City of Boston. The Foundation awards grants to organizations working to improve the racial climate in Boston by addressing issues of diversity and racism. Grantee organizations achieve their goals through a variety of means, including arts and cultural activities, youth leadership and recreational programs. Other grantees provide advocacy assistance, enabling individuals to confront racism through legal or political action. Some grantee organizations work to prepare young children to live in the reality of a multicultural society, others engage teens, and a few target a primarily adult constituency.

The Foley Hoag Foundation was the first—and remains the only— foundation to focus exclusively on the improvement of race relations in Boston. The trustees are fortunate to have the unqualified endorsement of Foley Hoag, which has provided an enormous amount of financial, administrative and moral support.

SUMMARY

Two recent developments, one by the Massachusetts Department of Environmental Protection (“MassDEP”) and one by ASTM International (“ASTM”), underscore the importance of addressing indoor air contamination that results when soil or groundwater contamination migrates as vapor.  On the regulatory side, MassDEP has emphasized its focus on this issue by issuing a flurry of draft guidance and procedures.  From an industry perspective, ASTM recently released a new industry standard for assessing indoor air contamination at properties that are the subject of real estate transactions.  As MassDEP’s draft standards are regulatory in nature and appear stricter than the ASTM standard, the ASTM standard may be of limited relevance here in Massachusetts.  However, it may serve to set the standard of care in states where Superfund regulations on this topic are not as detailed as those in Massachusetts.

SUMMARY

Yesterday, the U.S. Environmental Protection Agency published its long-anticipated formal determination on California's request to waive federal preemption of its automobile emissions standards for greenhouse gas emissions ("GHGs"). Although the ultimate fate of the EPA's determination will almost certainly be decided by the courts, the dispute between California and the EPA highlights the tension between state and federal efforts to regulate GHGs.

SUMMARY

Excerpt:

Corporate globalization presents companies with unanticipated risks and challenges. Businesses are held to higher standards of accountability with respect to social, environmental and ethical practices. Companies unresponsive to these demands risk damage to their reputations, brand image and competitiveness. We help savvy business leaders limit their companies’ risk by incorporating internationally recognized standards into their strategic planning, crisis response strategies and relationships with stakeholders.

Benefits of our counsel include:

• Reduction of threat to corporate reputation
• Reduction of legal risks associated with the uncertainties of globalization
• Enhanced brand image
• Increased customer and employee loyalty and retention Improved relationships with external stakeholders and public opinion leaders

Download the Foley Hoag Corporate Social Responsibility Brochure (.pdf)

SUMMARY

Engagements Include:

• Litigation and Arbitration between Sovereign States
• Arbitration between Sovereign States and Investors
• International Commercial Arbitration
• Litigation before the United States Courts

SUMMARY

• Litigios y Arbitrajes entre Estados Soberanos
• Arbitrajes entre Estados
• Soberanos e Inversionistas
• Arbitrajes Internacionales Comerciales
• Litigios ante las Cortes de los Estados Unidos

SUMMARY

As the only law firm in the United States with a Corporate Social Responsibility and risk management practice, Foley Hoag is singularly equipped to help clients put human rights principles and aspirations into practice in a manner that minimizes uncertainties and maximizes business opportunities. To this end, we assist clients in managing legal risks, safeguarding corporate reputations, and turning the challenges of globalization into a competitive advantage.

Download the Foley Hoag Corporate Social Responsibility Datasheet for the Extractive Sector (.pdf)

SUMMARY

On November 7, 2007, USICS issued a revised I-9 Employment Eligibility Verification Form. The primary change to the revised Form I-9 is the elimination of five documents which were previously listed on List A as acceptable for proof of both identity and employment eligibility:

• Certificate of U.S. Citizenship (Form N-560 or N-570)
• Certificate of Naturalization (Form N-550 or N-570)
• Alien Registration Receipt card (Form I-151 - please note that the current I-551 Permanent Resident Card remains on List A)
• Reentry Permit (Form I-327)
• Refugee Travel Document (Form I-571)

SUMMARY

This guide is intended to provide foreign businesspeople with an introduction to the basic kinds of laws and regulations that affect the conduct of business in the United States, and particularly in the Commonwealth of Massachusetts. The level of detail is varied, reflecting the nature of the legal areas discussed. For example, environmental law and taxation are subjects of detailed and technical regulation, while labor relations are governed as much by custom and practice as by direct regulation.

SUMMARY

Foley Hoag's Corporate Social Responsibility Law Update is a periodic update of the firm's unique CSR legal practice. The CSR practice works with major multinational companies to formulate legal strategies and business policies that incorporate respect for human rights and comply with existing national and international laws, voluntary codes and industry best practices. If you find this update useful, please encourage your colleagues and contacts to register with us at www.foleyhoag.com. As always, you can access all of our publications on our website foleyhoag.com. For more information on the Corporate Social Responsibility practice group, please contact Gare Smith or Dan Feldman

Included in this update:

• Litigation:
  • Romero v. Drummond Company, (N.D. Ala., jury verdict on Jury 26, 2007)
    (consolidated with Rodriguez v. Drummond Company)
  • Carrizosa v. Chiquita, (S.D. Fla., case filed on June 13, 2007
  • Doe v. Chiquita, (D.N.J., case filed on July 18, 2007)
  • Arias v. DynCorp, (D.D.C., decision on May 21, 2007)
  • Xiaoning v. Yahoo! Inc., (N.D.Cal., case filed April 18, 2007)
  • Carijano v. Occidental Petroleum, (Cal. Super. Ct., case filed on May 10, 2007) 2007
• Industry Watch
• International

SUMMARY

Chambers and Partners, a leading U.K.-based research and publishing company, has again included Foley Hoag and its individual lawyers in its popular Chambers USA: The Client's Guide. This year, eleven practice areas and 22 lawyers are represented.

A digital reprint is avalable for download (.pdf).

SUMMARY

Foley Hoag's Corporate Social Responsibility Law Update is a periodic update of the firm's unique CSR legal practice. The CSR practice works with major multinational companies to formulate legal strategies and business policies that incorporate respect for human rights and comply with existing national and international laws, voluntary codes and industry best practices. If you find this update useful, please encourage your colleagues and contacts to register with us at www.foleyhoag.com. As always, you can access all of our publications on our website foleyhoag.com. For more information on the Corporate Social Responsibility practice group, please contact Gare Smith or Dan Feldman.

Included in this update:

• News from Washington
• Voluntary Initiatives
• Litigation:
  • Rodriguez v. Drummond Co., (N.D. Ala., decision on March 5, 2007)
  • Sarei v. Rio Tinto, (9th Cir., decision on April 12, 2007)

SUMMARY

A response to Aaron Chatterji and Sonia Listokin

It is surprising and a bit disheartening to see two progressive thinkers embrace an old canard frequently found in the pages of the Economist, the Wall Street Journal, and other business-oriented publications: the notion that the corporate social responsibility (CSR) movement has "misguided" progressives into thinking that large companies can be "cajoled" into undertaking socially conscious activities. Yet Aaron Chatterji and Siona Listokin make precisely this argument in "Corporate Social Irresponsibility" [Issue #3]. In advising progressives to turn away from CSR, the authors perpetuate the myth that companies must choose between profits and responsible business practices...